Legal Trends – Part II © 2012 Fox Rothschild Atlantic Builders Convention Legal Trends – Part II Environmental Law Site Remediation Reform Act (SRRA) and Licensed Site Remediation Professionals (LSRPs) March 29, 2012 Presented by David Restaino, Esq.

Legal Trends – Part II © 2012 Fox Rothschild SRRA Overview  SRRA Adopted May 2009  Rules – final rules expected soon  Guidance “Exception”  Substantive SRRA Provisions - Use of LSRPs mandatory (May 7, 2012) - Mandatory timeframes & direct oversight - “Affirmative” duty to remediate - Remedial Priority System (RPS) “scores”

Legal Trends – Part II © 2012 Fox Rothschild LSRPs  Licensed Site Remediation Professionals - Best Professional Judgment - LSRP Licensing Board  Board determines final licensing standards - LSRPs Control Cleanup, Not DEP - Quicker Cleanups ? - Issuance of RAOs and not NFAs - DEP audits select sites / select LSRPs  Three-year review period

Legal Trends – Part II © 2012 Fox Rothschild Hiring the Firm, Getting the LSRP  How to oversee the LSRP - Hire two? - Hire one LSRP to oversee a non-LSRP? - What if you are buyer, and seller has LSRP obligation?  Insurance - Three-year review period  What if the LSRP switches firms?

Legal Trends – Part II © 2012 Fox Rothschild Timeframes & Guidance  Regulatory and Mandatory Timeframes - Timely completion of the remedial investigation - “Compliance assistance alert” letters  Remind responsible parties to submit required reports by (1st "mandatory" remediation time frame established by SRRA)  Deadline applies if began remediation before  Filing may include: Receptor Evaluation, Light Non-Aqueous Phase Liquid (LNAPL) Remediation Reporting Form, etc.  Direct DEP Oversight  Immediate Environmental Concerns (IECs)  Guidance, Guidance, Guidance

Legal Trends – Part II © 2012 Fox Rothschild Current Status of Guidance - Over 40 Guidance Documents  Clean Fill / Alternate Fill  Historic Fill  Immediate Environmental Concern (IEC)  Monitored Natural Attenuation  Preliminary Assessment  Presumptive and Alternative Remedy  Vapor Intrusion  Funds and Grants  Classification Exception Area (CEA)  Public Notification  Remedial Action Permits (soils, groundwater)  Issuance of Response Action Outcome (RAO)

Legal Trends – Part II © 2012 Fox Rothschild Remedial Priority System (RPS)  N.J.S.A. 58:  Ranks sites best to worst, categories 1 to 5  To be used for DEP direct oversight  All sites ranked except: - homeowner heating oil tanks of 2,000-gallons or less - sites for which the DEP’s Bureau of Operations and Maintenance Monitoring is overseeing long-term operations - sites with unknown sources

Legal Trends – Part II © 2012 Fox Rothschild RPS Process  Responsible party receives DEP letter with score - Computer model that utilizes geographic data bases and layers, receptor information and site specific data - Wells, pathways and receptors - “Surrogate value” when no data available  60 days to provide feedback on score  Final scores released to public Fall 2012

Legal Trends – Part II © 2012 Fox Rothschild “No Further Action” Case  I/M/O Crompton Colors, Dkt. No. A T1 (App. Div., Oct. 27, 2011) - Potential vapor intrusion (V.I.) on adjacent site and 2002 NFAs rescinded in attempt to gain V.I. study - Can DEP rescind tenant’s NFA to gain V.I. study, when the contamination is from historic fill & regional groundwater plume rather than the tenant’s activities? - Appellant’s request for hearing was denied below

Legal Trends – Part II © 2012 Fox Rothschild Crompton Colors  Appellate Division holding: - Limits decision to request for administrative hearing to challenge factual basis for DEP’s decision rescinding NFA and directing submission of a workplan - Rejects DEP characterization of its actions as “mere requests” - Because DEP directives cannot be ignored, a hearing is required  Compare: Sackett v. EPA, U.S. Sup. Ct. March 21, 2012

Legal Trends – Part II © 2012 Fox Rothschild Natural Resource Damages (NRDs)  DEP v. Essex Chemical Corp. (App. Div., March 20, 2012) - Defendant spent $5 million to remediate - Site Remediation Program was “very pleased” with defendant’s remediation efforts and did not consider 20-year remediation to be unreasonable in time - Affirms trial court: Plaintiff failed to meet its burden of proof - Plaintiff’s experts’ testimony deemed not credible as to $5.7MM primary restoration damages (seeking a new cleanup plan and costs for same) - Plaintiff’s experts’ testimony deemed not credible as to $2.3MM compensatory restoration damages (seeking $ to purchase raw land)  Improper to use asking prices and not sales prices  Improper to use a 25-mile radius from site  Properties chosen were not comparable to the injured land

Legal Trends – Part II © 2012 Fox Rothschild Contact Information David Restaino, Esq